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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on remand from the
United States Court of Appeals for the Tenth Circuit. United States
Department of the Interior, Bureau of Reclamation, Rio Grande Project v.
FLRA, 908 F.2d 570 (10th Cir. 1990) (Bureau of Reclamation, Rio Grande
Project v. FLRA). The court reviewed the Authority's Decision and Order
requiring the Agency to bargain under section 704 of the Civil Service Reform
Act of 1978 (CSRA), codified at 5 U.S.C. § 5343 (Amendments) (1988 ed.),
over a proposal providing for the continuation of Sunday premium pay for
certain prevailing rate employees at the Agency. International Brotherhood
of Electrical Workers, Local Union No. 611, AFL-CIO and U.S. Department of the
Interior Bureau of Reclamation, Rio Grande Project, 26 FLRA 906 (1987)
(Rio Grande Project I). The court also reviewed the Authority's Order
denying the Agency's motion for reconsideration of that decision.
International Brotherhood of Electrical Workers, Local Union No. 611,
AFL-CIO and U.S. Department of the Interior Bureau of Reclamation, Rio Grande
Project, 28 FLRA 587 (1987) (Rio Grande Project II). The court found
that the Authority misinterpreted section 704 of the CSRA and section 9(b) of
the Prevailing Rate Systems Act (PRSA), codified at 5 U.S.C. § 5343
(Amendments) (1988 ed.), in reaching its conclusion and reversed the
Authority's decision. The court remanded the case to the Authority to determine
whether prevailing rate employees have any statutory entitlement to Sunday
premium pay.

For the reason discussed below, we conclude that the
prevailing rate employees involved in this case do not have a statutory
entitlement to Sunday premium pay. Therefore, the petition for review will be
dismissed.

II. Background

A. Proposal

Any employee whose regular work schedule includes an
eight (8) hour period of service, a part or all of which is on Sunday, is
entitled to additional pay at the rate of twenty-five percent (25%) of his/her
hourly rate of basic pay for each hour of work performed during that eight (8)
hour period of service.

B. Facts

The proposal would apply to nonsupervisory, hourly-paid
operations and maintenance bargaining unit employees at the Elephant Butte Dam
and Powerplant in New Mexico. Those employees negotiate their wages and premium
pay provisions in accordance with section 704 of the CSRA and section 9(b) of
the PRSA.

The Agency has negotiated concerning the wages and pay
practices of the operations and maintenance employees since 1960. In 1984, the
Agency determined that its long-standing practice of providing Sunday premium
pay was illegal because Sunday premium pay was not in accordance with local
prevailing practices. The Agency proposed to terminate the practice. The Union
opposed the proposed change. The parties sought the assistance of the Federal
Service Impasses Panel. However, the Panel declined jurisdiction until
threshold matters concerning the negotiability of the proposal had been
resolved. The Union then filed a negotiability appeal with the
Authority.

C. Authority's Decisions

The Authority found that under section 704, the Agency
must bargain over terms and conditions of employment, including pay and pay
practices, of prevailing rate employees where those terms and conditions of
employment were the subject of negotiation in accordance with prevailing rates
and practices prior to August 19, 1972. The Authority also found that the
bargaining provided for under section 704 was not limited only to the
particular terms of provisions which were specifically negotiated by the
parties in their collective bargaining agreements prior to August 19, 1972. The
Authority stated "[i]f a disputed proposal involves subject matters which had
previously been negotiated by the parties, those subjects are within the
Agency's duty to bargain under section 704." Rio Grande Project I, 26
FLRA at 909.

The Authority determined that the matter of Sunday
premium pay for bargaining unit employees was "encompassed within the premium
pay practices negotiated by the parties prior to August 19, 1972." Id.
at 910. Consequently, the Authority concluded that the Union's proposal
concerned a term and condition of employment which was the subject of
negotiation prior to August 19, 1972. Id.

The Agency argued that even if the matter of premium pay
was previously covered in the parties' agreement, the Agency did not have an
obligation to negotiate over Sunday premium pay because it is not a prevailing
practice in the local area. The Authority rejected the Agency's argument. The
Authority found that "consistent with the purpose of section 9(b) and section
704 to preserve negotiations over existing benefits, employees in this case,
who had historically received Sunday premium pay, may negotiate for continued
payment of the premium pay regardless of whether it is a prevailing practice in
the local area." Id. at 912. The Authority concluded that the
"negotiation of Sunday premium pay is consistent with the purpose of pay equity
established by the Prevailing Rate Systems Act and the Congressional intent to
preserve for negotiations those benefits which employees covered by sections
9(b) and 704 had historically received." Id. The Authority ordered the
Agency to bargain over the proposal.

The Agency sought reconsideration of the Authority's
bargaining order in Rio Grande Project I. The Agency contended that the
Authority: "(1) misapplied section 5341(1) of the [PRSA], 5 U.S.C. § 5341(1), to prevailing rate employees whose wages and wage practices are
negotiated pursuant to section 9(b) of the [PRSA] and section 704 of CSRA; and
(2) misinterpreted section 704 of the CSRA to preserve negotiations for
employees who had historically received Sunday premium pay." Rio Grande
Project II, 28 FLRA at 588. However, the Authority found that the Agency
did not establish that reconsideration was warranted because of "extraordinary
circumstances" within the meaning of section 2429.17 of the Authority's Rules
and Regulations. Therefore, the Authority denied the Agency's request for
reconsideration.

D. Court's Decision

The U.S. Court of Appeals for the Tenth Circuit disagreed
with the Authority's "reading of the legislative history" of section 9(b) of
the PRSA and section 704 of the CSRA. Bureau of Reclamation, Rio Grande
Project v. FLRA, 908 F.2d at 574. The court stated that "the legislative
history makes it clear that Section 704 was intended to 'grandfather'
collective bargaining agreements between prevailing rate employees and federal
employers that were in effect at the time the Civil Service Reform Act was
enacted." Id. The court also stated that "the legislative history
demonstrates that Congress enacted Section 9(b) and 704 in order to preserve
the status quo, not to expand the scope of the bargaining obligations between
federal employers and prevailing rate employees." Id.

The court found, therefore, that the Agency's obligation
to bargain under section 704 extended only to those matters that had been
specifically negotiated by the parties prior to August 19, 1972. The court also
found that demonstration by the Union that the parties had negotiated
concerning other kinds of premium pay did not satisfy "the requirement of
Section 704(a) of negotiations prior to August 19, 1972." Id. at 576.
The court held that in order for the proposal concerning Sunday premium pay to
be negotiable, the Union must show that the parties specifically negotiated
over Sunday premium pay prior to August 19, 1972. The court noted that the
parties admitted that "Sunday premium pay was not specifically negotiated prior
to August 19, 1972, because the parties apparently felt that the employees had
a statutory right to receive Sunday premium pay" and the Agency paid the
employees Sunday premium pay. Id. (emphasis in original). Therefore, the
court reversed the Authority's ruling that the subject matter of Sunday premium
pay was negotiated by the parties prior to August 19, 1972.

The court also held that under section 704(b), "if the
subject matter of negotiations pertains to 'pay and pay practices,' the
negotiations 'shall be negotiated in accordance with prevailing rates and
pay practices.'" Id. (emphasis in original, citation omitted). The
court stated that "the parties do not dispute that payment of Sunday premium
pay is not a prevailing pay practice in the relevant area in light of a 1984
survey of pay practices conducted by [the Agency]." Id. The court also
stated that "there is no doubt that the matter of Sunday premium pay is a 'pay
and pay practice' and that Sunday premium pay is not the local prevailing
practice." Id. at 577.

The court reversed the Authority's decision "because it
was 'not in accordance with law,' in ordering [the Agency] to negotiate the
issue of Sunday premium pay." Id. (Citation omitted.) The court remanded
the case to the Authority for further proceedings consistent with its decision
"[b]ecause there still may be unresolved issues, particularly pertaining to
whether these prevailing rate employees have any statutory entitlement to
Sunday premium pay." Id. at 577-78.

III. Analysis and Conclusions

We accept the court's decision as the law of the case.
Therefore, we adopt the court's findings that: (1) because Sunday premium pay
was not specifically negotiated by the parties prior to August 19, 1972, the
Agency is not obligated to bargain over the Union's proposal concerning Sunday
premium pay; and (2) Sunday premium pay was not the local prevailing pay
practice in the parties' wage survey area in 1984. SeeU.S.
Department of the Interior, Colorado River Storage Project and International
Brotherhood of Electrical Workers, Local 2159, 36 FLRA 283 (1990) (where
the parties stipulated that Sunday premium pay was not a "current prevailing
practice," arbitrator's award reinstating Sunday premium pay was inconsistent
with section 704, as interpreted in United States Information Agency v.
FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA) and, therefore,
was set aside); Department of the Interior, Bureau of Reclamation,
Washington, D.C., 36 FLRA 3 (1990), petition for review filed sub
nom.American Federation of Government Employees, Local 1978, AFL-CIO v.
FLRA, No. 90-70388 (9th Cir. July 30, 1990) (on reconsideration, the
Authority adopted the court's interpretation of section 704 in USIA v.
FLRA and based on the parties' stipulation that Sunday premium pay was not
"among the current practices in the industry," held that the agency had no
obligation to continue the payment of Sunday premium pay and, therefore, did
not violate the Statute by directing the termination of such
payments).

We also conclude that these prevailing rate employees
have no statutory entitlement to Sunday premium pay. Under subchapter V of
chapter 55 of title 5 of the United States Code, codified at 5 U.S.C. §
5544(a), prevailing rate employees are entitled to premium pay at the rate of
25 percent of their hourly rate of basic pay for each hour of work performed
during an 8-hour period of service a part of which is on Sunday. However,
section 704(b) of the CSRA provides that prevailing rate employees who
negotiate their pay practices in accordance with section 9(b) of the PRSA are
excluded from the coverage of subchapter V of chapter 55 of title 5.

In Medler v. United States, Bureau of Reclamation,
Department of the Interior, 616 F.2d 450 (9th Cir. 1980) (Medler),
the court considered claims for longevity and shift differential pay by Bureau
of Reclamation prevailing rate employees subject to collective bargaining
agreements. Longevity and shift differential pay was provided other prevailing
rate employees under the PRSA (codified at subchapter IV of title 5 of the
United States Code). The Bureau of Reclamation employees claimed that they also
were entitled to longevity and shift differential pay under the
PRSA.

The court stated that "by use of very specific,
unambiguous language in § 9(b) of the [PRSA], Congress clearly intended to
exclude prevailing rate employees whose wages are determined through collective
bargaining from coverage under the [PRSA]." 616 F.2d at 452. The court held
that "a fair and reasonable interpretation of § 9(b)(1) excludes
prevailing rate employees subject to collective bargaining agreements from
receiving statutory entitlements to longevity and differential pay[.]"
Id. at 453.

Similarly, we find that in carrying forward the
collective bargaining practices for employees covered by § 9(b) of the
PRSA by its specific, unambiguous wording in section 704(b), Congress intended
to exclude from the coverage of subchapter IV of chapter 53 and subchapter V of
chapter 55 of title 5 of the United States Code prevailing rate employees whose
wages are determined through collective bargaining. Thus, these employees are
specifically excluded from the coverage of the provisions of title 5 which
provide Sunday premium pay for prevailing rate employees. However, where the
prerequisites for the negotiation of pay practices under section 704(b) are
met, prevailing rate employees covered by section 704 may negotiate to provide
for Sunday premium pay. SeeMedler, 616 F.2d at 454.

Based on the court's rationale and conclusions in
Bureau of Reclamation, Rio Grande Project v. FLRA, we conclude that the
Union's proposal is nonnegotiable.